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MOREHOUSE ET AL. v. UNITED STATES ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA.

No. 500. Decided December 18, 1961.

194 F. Supp. 940, affirmed.

Clarence D. Todd, G. Duane Vieth and Robert N. Burchmore for appellants.

Solicitor General Cox, Assistant Attorney General Loevinger, Richard A. Solomon, Robert W. Ginnane and Fritz Kahn for the United States et al.

PER CURIAM.

The motion to affirm is granted and the judgment is affirmed.

RAFTER v. HAYS ET AL.

APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

No. 527. Decided December 18, 1961.

Appeal dismissed and certiorari denied.

Appellant pro se.

Louis J. Lefkowitz, Attorney General of New York, Paxton Blair, Solicitor General, and Jean M. Coon, Assistant Attorney General, for Honorable Aron Steuer, Justice of the New York Supreme Court, appellee.

PER CURIAM.

The motion to dismiss is granted and the appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.

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NEW YORK CENTRAL RAILROAD CO. v. UNITED STATES ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 482. Decided January 8, 1962.

194 F. Supp. 947, affirmed.

Robert D. Brooks and Alfred A. Green for appellant.

Solicitor General Cox, Assistant Attorney General Loevinger, Lionel Kestenbaum, Elliott H. Moyer and Robert W. Ginnane for the United States et al., and Clyde B. Aitchison, John R. Turney, Frederick A. Babson, Jr. and John H. Eisenhart, Jr. for the National Freight Traffic Assn., Inc., et al., appellees.

PER CURIAM.

The motions to affirm are granted and the judgment is affirmed.

SAVE WAY NORTHERN BOULEVARD, INC., v. NEW YORK.

APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

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Appeal dismissed for want of a substantial federal question.

Reported below: 10 N. Y. 2d 727, 748, 176 N. E. 2d 839, 177 N. E. 2d 47.

Harold H. Levin and Larry M. Lavinsky for appellant. Leo A. Larkin and Seymour B. Quel for appellee.

PER CURIAM.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

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The motions to dismiss are granted and the appeals are dismissed. Treating the papers whereon the appeals were taken as petitions for writs of certiorari, certiorari is denied.

*Together with No. 547, Durham v. City of Indianapolis, also on appeal from the same Court.

Syllabus.

SEYMOUR v. SUPERINTENDENT OF WASHINGTON STATE PENITENTIARY.

CERTIORARI TO THE SUPREME COURT OF WASHINGTON.

No. 62. Argued December 13, 1961-Decided January 15, 1962. Petitioner is imprisoned in the Washington State Penitentiary under a sentence for attempted burglary imposed by a state court. He petitioned the State Supreme Court for habeas corpus, alleging that he is an Indian, that the alleged offense was committed in "Indian country," and that, therefore, exclusive jurisdiction was in the United States under 18 U. S. C. § 1153. The Court found that petitioner was a member of the Colville Tribe; but it denied habeas corpus on the ground that the place where the offense was committed was no longer an Indian reservation, though it had been a part of the Colville Indian Reservation. Held: The Colville Indian Reservation is still in existence; the land upon which the offense is alleged to have occurred is within the limits of that Reservation; the state courts had no jurisdiction to try petitioner for that offense; and the judgment denying habeas corpus is reversed. Pp. 352-359.

(a) The Act of March 22, 1906, providing for the disposition of surplus lands remaining in the South Half of the diminished Colville Indian Reservation did not dissolve that Reservation, and it is still in existence. Pp. 354-357.

(b) Even if the land upon which the alleged offense was committed was held by a non-Indian under a patent in fee, a different conclusion would not be required, since 18 U. S. C. § 1151 defines "Indian country" as including "all land within the limits of any Indian reservation notwithstanding the issuance of any

patent." Pp. 357-358.

(c) A different conclusion is not required by the fact that the land on which the offense occurred is located within a governmental townsite laid out by the Federal Government under § 11 of the 1906 Act. Pp. 358–359.

55 Wash. 2d 109, 346 P. 2d 669, reversed.

Glen A. Wilkinson argued the cause and filed briefs for petitioner. Claron C. Spencer was with him on the briefs.

Opinion of the Court.

368 U.S.

Stephen C. Way, Assistant Attorney General of Washington, argued the cause for respondent. With him on the brief was John J. O'Connell, Attorney General.

At the request of the Court, Solicitor General Rankin filed a memorandum for the United States.

MR. JUSTICE BLACK delivered the opinion of the Court. The petitioner Paul Seymour was charged with burglary by the State of Washington in the Superior Court of Okanogan County and pleaded guilty to the lesser included offense of attempted burglary. Upon this plea he was convicted and sentenced to serve seven and onehalf years in the state penitentiary. Later, he commenced this proceeding by filing a petition for writ of habeas corpus in the State Supreme Court urging that his state conviction was void for want of jurisdiction on the grounds that he was an enrolled, unemancipated member of the Colville Indian Tribe and therefore a ward of the United States; that the "purported crime" of burglary for which he had been convicted was committed in "Indian country" as defined in 18 U. S. C. § 1151; 1 and that burglary committed by an Indian in Indian country is an offense "within the exclusive jurisdiction of the United States" under 18 U. S. C. § 1153. Since the petition, return and answer raised issues of fact, the State Supreme Court referred the matter to the original trial court to determine (1) whether petitioner was a member of the Colville Tribe, and (2) whether the offense was

1 62 Stat. 757, as amended, 63 Stat. 94.

2 "Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States." 62 Stat. 758.

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